This blog is authored by Dr Jane Richards, Law Lecturer at the University of Leeds.
On July 3rd 2023, Hong Kong’s National Security Police issued warrants for the arrest of 8 pro-democracy figures who are now in exile outside Hong Kong. The charges alleged constitute offences under Hong Kong’s National Security Law (NSL), and include, secession, subversion, incitement to secession and subversion, and collusion with a foreign country or with external elements that endanger national security. The conduct which is alleged to be in breach of the NSL includes advocating for the independence of Hong Kong and Taiwan, meeting with foreign governments to call for sanctions against Hong Kong government officials, participating in media interviews, posting on social media, and engaging in activities deemed hostile to China and Hong Kong.
Part 6 of the NSL includes extraterritorial provisions, which says that the NSL extends to both permanent residents of Hong Kong and non-permanent residents, all throughout the world. This means that any person in the world who endangers Hong Kong’s national security is potentially liable to prosecution. Extraterritorial laws in themselves are not unique; it is well established in international law that state parties may enact laws which have extraterritorial application. Common offences include those of terrorism, anti-bribery and drug trafficking. In a press release on 4th July, the Hong Kong Security Bureau justified the warrants on the basis of the international legal principle of ‘protective jurisdiction’. This principle in international law allows for the legitimate criminalisation of extra-territorial conduct which threatens “the security, territorial integrity or political independence of the state”. In the context of Hong Kong’s NSL, Professor Bing Ling has argued that the legitimate application of the principle of protective jurisdiction will turn, “in a particular case, whether the defendant’s act, such as writing a critical essay or chanting a protest slogan, has a specific effect on Hong Kong’s national security.”[1]
In testing this hypothesis, there is a lack of clarity as to whether the conduct alleged, being political in nature, actually threatens Hong Kong’s national security. The further conceptual difficulty is in the way that national security is defined through China’s lens of analysis. It is uncontroversial that all state parties have a right to defend their national security. However, in China’s one-party state, a challenge either to its territorial integrity or its political system,[2] may operate as a potential threat to national security. In essence, because political dissent has the potential to threaten political stability, any challenge to the dominant political narrative may be understood to threaten national security. In the words of Professor Hualing Fu, “The Party monopolises political power and its closed political system necessarily invites challenges which in turn necessitates repression….As in other Communist regimes, political challenges principally take the form of creating alternative political thinking, nurturing political opposition forces, and mobilising civil society to rally in support of certain legal or political changes.”[3]
There exists a tension between China’s all-encompassing conception of national security, and human rights principles which are guaranteed both within the NSL, and by application of international law. Articles 4 and 5 of the NSL guarantee relatively robust human rights protections, and that the rule of law shall continue to apply in Hong Kong. Of specific relevance, Article 4 of the NSL says that, “The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.” When the UK and China reached agreement in 1984 as to the terms of China’s resumption of sovereignty, it agreed that the ICCPR would continue to apply. Moreover, the UN’s Human Rights Committee has made clear that there is no scope under international law to derogate from rights guaranteed in the ICCPR, including freedom of speech. Further, enforcement of the warrants by the international community may breach the well-established international principle of non-refoulement, which prevents state parties from returning a person to a country where they will likely face persecution.
To this end, the subjugation of human rights under the NSL is inconsistent with Hong Kong’s obligations under international law, and also with Hong Kong’s domestic legislative framework. However, cases decided under the NSL demonstrate that in resolving any tensions between the protection of human rights and that of national security, human rights are to be read down.
Whether or not the arrest warrants will be enforceable will ultimately turn on how the international community responds. The British Government has been unequivocal in its condemnation of the NSL, and on the day that the warrants were issued, the British Foreign Secretary strongly condemned the actions of the Hong Kong Police. Australian and US officials have also spoken out against the warrants. The test will be as to whether the international community complies with the Hong Kong Police Force’s warrants. This is not just an issue of offering protection to the 8 pro-democracy leaders against whom the warrants have been issued. It is also a matter of upholding international legal principles, such as freedom of speech and the rule of law.
[1] Bing Ling, “Extraterritorial Application of the Hong Kong National Security Law: A Legal Approach”, Hualing Fu and Michael Hor (Eds) The National Security Law of Hong Kong: Restoration and Transformation, Hong Kong University Press, 2022, 231-254 at 243. [2] Hualing Fu, “China’s Imperatives for National Security Legislation”, Cora Chan and Fiona de Londras (eds) China’s National Security: Endangering Hong Kong’s Rule of Law?, Hart, 2020, 41-60 at 44. [3] Ibid at 44.
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